Citation Nr: 9929494
Decision Date: 10/14/99 Archive Date: 10/21/99
DOCKET NO. 98-14 357 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
Entitlement to service connection for numbness and weakness
of the left upper and lower extremities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B.E. Jordan, Counsel
INTRODUCTION
The veteran had active military service from September 1981
to May 1992. The veteran served in the Southwest Asia
theatre from July 1991 to October 1991.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in Columbia, South Carolina.
FINDING OF FACT
The claim of entitlement to service connection for numbness
and weakness of the left upper and lower extremities is
plausible.
CONCLUSION OF LAW
The claim for service connection for numbness and weakness of
the left upper and lower extremities is well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered with respect to this
appeal is whether the appellant has presented evidence of a
well-grounded claim. 38 U.S.C.A. § 5107(a).
A well-grounded claim is a claim that is plausible, that is,
one that is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). If a claim is not well grounded, the appeal must
fail with respect to it, and there is no duty to assist the
appellant further in the development of facts pertinent to
the claim. Id., 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5
Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609
(1992).
The initial burden is on the claimant to produce evidence of
a well-grounded claim. 38 U.S.C.A. § 5107(a); see Grivois
v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at
610-11. Where a determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is plausible or possible is
required. Grottveit at 92-93.
Further, in order for a claim to be considered plausible, and
therefore well grounded, there must be evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or an injury in service (lay or
medical evidence), and medical evidence of a nexus between
the inservice injury or disease and a current disability.
Epps. v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604
(Fed. Cir. 1996) (per curiam), Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during service.
38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1998).
Service medical records reflect that the veteran complained
of bodily weakness and pain beginning in 1982. From October
1982 to September 1987, the veteran was seen and treated for
pain on the left side of the back, chest, face, and ear, pain
to the neck and shoulders, weakness and numbness to the left
hand, numbness of the left side of the face and left
shoulder, tenderness of right upper trapezius and radiating
to the right shoulder with spasm. The diagnoses included
trigeminal neuralgia, musculoskeletal pain, and muscle strain
with spasm. Medical entries dated in April 1990, September
1990, and October 1990 reflect complaints of weakness and
pain in the left shoulder, upper arm, and left hand.
Tendonitis and myositis of the left upper arm and shoulder
could not be ruled out, and leg cramps, numbness, and
musculoskeletal pain were noted to be of uncertain etiology.
Entries dated in November 1991 show complaints of recurrent
episodes of left arm and left leg pain, pain on the left side
of the body of two weeks duration, along with swelling, and
numbness of both hands. It was noted that such symptoms had
occurred several times during the prior year. It was noted
that these symptoms first occurred in October 1990. The
assessment was musculoskeletal pain of unknown etiology. The
report of a separation examination dated in April 1992 is
negative for complaints, findings, or diagnoses pertaining to
left sided weakness or numbness.
The evidence shows that the veteran experienced chronic
numbness, pain, and weakness involving the left upper and
lower extremities. In addition, post-service medical
evidence demonstrates similar symptomatology. Thus, the
veteran's claim is well grounded. 38 U.S.C.A. § 5107;
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488
(1997). For reasons set forth below, the Board finds that
further development is warranted.
ORDER
The claim for service connection for numbness and weakness of
the left upper and lower extremities is well grounded; to
this extent, the appeal is granted.
REMAND
The Board notes that the veteran exhibited chronic numbness
and weakness of the left upper and lower extremities during
service. The diagnoses included musculoskeletal pain,
questionable muscle spasm, and muscle strain with spasm.
Post-service medical records reflect that the veteran
continued to experience such symptoms. In a report dated in
August 1997, Dr. Marshall A. White indicated that the veteran
had complained of continued heaviness in the left upper and
lower extremities. The doctor noted that such symptoms most
likely had an affective component. It was indicated that the
veteran refused to consider the possibility of depression or
a trial of an antidepressant.
Treatment reports of Dr. Alton E. Bryant, III, dated in
August 1997 reflected development of left hemiparesis in
1994. It was noted that the symptoms later resolved. Dr.
Bryan noted that an examination revealed decreased sensation
in the left side of the face and left hemiparesis with
reduced muscle strength in the left upper and lower
extremities. No diagnosis was reported. After having
undergone physical therapy, the veteran demonstrated dramatic
recovery, but residual decreased sensation on the left side
was noted.
In November 1997, the veteran underwent VA general medical
examinations. The veteran reported numbness and weakness
involving her left side. Additional symptoms included
difficulty holding objects and problems controlling the left
side of her body. At the conclusion of a physical
examination, the examiner entered a tentative diagnosis of
fibromyalgia. A neurological examination revealed, in
pertinent part, definite clear give away weakness in the
upper extremities. It was noted that the veteran was unable
to feel passive movement of the left hand with her eyes
closed. The examiner indicated that such symptoms suggested
profound proprioceptive disturbance, but inconsistencies in
further testing indicated elements of either malingering or
hysteria. The examiner considered the possibility of a
lacunar infarction related to hypertension and stated that a
parietal lesion could produce symptoms similar to those
exhibited, which appeared to be malingering. The examiner
requested a magnetic resonance image of the brain to
determine if a structural lesion could be identified.
In light of the variant medial findings with respect to the
disability at issue, the Board is of the view that a VA
examination as set forth below would be helpful in an
equitable disposition of this matter.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should contact the veteran and
request that she provide the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who may possess additional
records pertinent to her claim for
service connection for numbness and
weakness of the upper left and lower
extremities. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran which are not currently of
record.
2. Thereafter, the RO should arrange for
the veteran to undergo a VA examination
by a board certified neurologist, if
available, to determine the nature and
extent of any disability manifested by
weakness of the left upper and lower
extremities. The claims folder and a copy
of this Remand should be available to the
examiner for review prior to the
examination. All indicated studies
should be conducted. With respect to any
disorder found to be present involving
the left upper and lower extremities, the
examiner should provide an opinion as to
whether such disorder is the result of
disease or injury, and if so, the
examiner should identify the specific
disease or injury. With respect to any
disorder present, the examiner should
also provide an opinion as to whether it
is at least as likely as not that such
disorder is related to symptoms noted in
service. A complete rationale should be
given for all opinions and conclusions
expressed.
3. The RO should ensure that the
examination report contains all requested
information. Then, the RO should
undertake any other indicated
development, and readjudicate the claim
for service connection for numbness and
weakness of the left upper and lower
extremities.
4. If the benefit sought on appeal is
not granted to the satisfaction of the
veteran, a Supplemental Statement of the
Case should be issued, and the veteran
and her representative should be provided
with the appropriate time period in which
to respond.
Thereafter, the case should be returned to the Board for
further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to the final
outcome warranted. No action is required of the veteran
until she is notified by the RO. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
JOHN R. PAGANO
Acting Member, Board of Veterans' Appeals